scales of justice

(Credit: Getty Images)

A federal COVID-19 vaccine-or-test mandate was hit with another lawsuit Monday, which challenged the government’s authority to issue such a mandate and called the mandate a “gross abuse” of government power and a violation of personal liberty.

The Heritage Foundation announced that it filed a lawsuit challenging the Occupational Safety and Health Administration’s COVID-19 emergency temporary standard for private employers. The American Center for Law and Justice filed the suit on behalf of the conservative think tank in the US. Court of Appeals for the D.C. Circuit Court.

The OSHA standard, which applies to private employers with 100 or more employees, was temporarily blocked by the 5th Circuit Court of Appeals before all legal challenges were consolidated at the 6th Circuit Court of Appeals. OSHA announced in November that it was suspending enforcement of the standard “until further court order.”

The standard faces legal challenges from at least 27 states, as well as lawsuits and petitions from private litigants and business groups. The challenges revolve around arguments that the standard violates the U.S. Constitution or exceeds OSHA’s statutory authority, that OSHA did not follow the proper rulemaking process, that workplace risks do not justify the imposition of the standard, or that OSHA cannot justify a “grave danger” by implementing the standard two years into the pandemic.

The Biden administration has asked the 6th Circuit Court of Appeals to reinstate the federal workplace COVID-19 vaccine-or-test mandate. Tuesday was the last day for parties to enter a “motion to modify, revoke or extend the stay,” according to court records. Responses to motions regarding the stay are due in court no later than Dec. 7, and any replies must be submitted by Dec. 10, meaning the standard will continue to be stayed while the court considers the case.

OSHA also has extended the comment period on the standard until Jan. 19 from its original Dec. 6 deadline, “to allow stakeholders additional time to review the ETS and collect information and data necessary for comment.”

The Heritage Foundation lawsuit argues that the mandate exceeds OSHA’s statutory authority, encroaches on the states’ 10th Amendment police power and exceeds the federal government’s authority under the Commerce Clause.

It is anticipated that the U.S. Supreme Court will make a final determination on the standard.

‘Doughnut hole’

Jennifer Hilliard, an attorney with law firm Arnall Golden Gregory, addressed in a JD Supra article the fact that assisted living communities are temporarily in a “doughnut hole” regarding federal vaccine mandates.

As the speakers during a November Argentum call had noted, Hilliard wrote that settings subject to the OSHA emergency temporary standard for healthcare announced in June are exempt from the OSHA vaccination and testing emergency temporary standard. The exemption, Hilliard said, “places assisted living facilities in a doughnut hole, where neither the Centers for Medicare and Medicaid Services vaccine mandate rule nor the OSHA vaccine standard applies to these facilities, at least temporarily.”

Although CMS made clear that its rule does not apply to assisted living providers, it applies to skilled nursing facilities and may affect staff members who interact with other employees or residents in skilled nursing facilities. This could affect continuing care retirement communities that house a variety of care settings on one campus and share staff members among service lines.

The OSHA healthcare standard, which went into effect June 21, applies to healthcare settings where suspected or confirmed individuals with COVID-19 are treated, including assisted living communities and CCRCs. The standard requires operators to conduct hazard assessments and have written plans to mitigate the spread of the coronavirus, provide employees with personal protective equipment, and implement social distancing, employee screening, and cleaning and disinfecting protocols. 

Although many other settings covered by the OSHA healthcare standard are also covered by the CMS vaccine mandate rule, assisted living communities are not, Hilliard noted. She added that affected assisted living communities likely will become subject to the OSHA vaccination and testing standard if the healthcare standard expires on Dec. 21.

“Right now, we don’t know what OSHA intends to do; but the agency stated in the commentary to its vaccine mandate that if the healthcare ETS goes away, assisted living would then be subject to the vaccine ETS and, thus, its mandate,” Hilliard told McKnight’s

Like industry advocates advising senior living operators to be prepared to act, Hilliard said assisted living providers should take advantage of the regulatory reprieve to plan for a future that includes a vaccine mandate.

Employer plans

Meanwhile, a new survey from Willis Towers Watson found that 57% of U.S. employers now require — or are planning to require — COVID-19 vaccination of their employees. That number includes 18% of employers who have current vaccine mandates, 32% that plan to require vaccinations only if the OSHA vaccination and testing standard takes effect, and 7% that plan to mandate vaccinations regardless of the status of the standard.

The survey, conducted Nov. 12 to 18, included 543 U.S. employers that employ a combined 5.2 million workers.

According to the survey, only 3% of employers with vaccine mandates reported spikes in resignations, although 31% of employers planning to implement mandates reported that they were “very concerned” about losing employees. On the other hand, 48% said they believe that vaccine mandates could help recruit and retain employees.

In addition to vaccine mandates, 84% of employers said they will offer testing, with 25% reporting that they will require unvaccinated employees to pay for that testing. Almost all employers (90%) said they require or plan to require masks to be worn indoors.

Approximately 19% of employer respondents said that their employee vaccination rates are at less than 50%, whereas 33% reported rates of 75% or more. 

The survey found waning employer enthusiasm for financial incentives for vaccination; 75% of respondents reported that they offer no financial incentives, 11% said they offer some financial incentive, and 14% said they have discontinued or plan to discontinue financial incentives.